A recent decision by the Appellate Division decided that a village zoning code was inapplicable to a water district. As a result, the water district was able to proceed with replacement of one of its massive elevated water storage tanks and the village was powerless to use its zoning powers to either stop the construction or impose restrictions on the structure.

The case, Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 57 NY3d 154 [2d Dep’t 2017], involved a special district located within the Town of North Hempstead. The special district, the Manhasset-Lakeville Water District, supplies potable water to consumers located within the district’s boundaries. The water district uses its elevated water storage tanks to store water and maintain water pressure. One of the district’s storage tanks is on property owned by the water district that is located within the boundaries of the Village of Munsey Park (“Village”).

The elevated water storage tank in question was built in 1929. The water district determined it was in need of replacement in 2014. The water district developed a plan to replace the 1929 storage tank and held two public hearings about its proposal. Village officials participated in these public hearings. The district revised the plan after the public hearings, partly to accommodate concerns of the Village and Village residents elicited at the hearings.

The finalized plan called for the replacement of the 1929 storage tank with a new tank that would hold 250,000 gallons more than the 1929 tank. In addition, an antennae was proposed to be installed on the new tank to facilitate wireless communication between the district facilities, its employees, and volunteer firemen. The water district determined that the proposed construction plan was immune from the Village zoning code, based upon the principles enumerated in Matter of County of Monroe (City of Rochester), 533 NY 2d 702 [1988].

The Village sued. It sought a declaratory judgment and permanent injunction to prevent the demolition of the 1929 tank and construction of the replacement tank, claiming that the 30 foot height restriction contained in the Village zoning code would be violated by this structure. The trial court ruled in favor of the water district, a finding that was affirmed by the Second Department.

The appellate court discussed the City of Monroe case, in which the Court of Appeals dealt with the applicability of a local zoning code where two governmental entities are in conflict over a proposed project. The Court of Appeals set forth a balancing test in that case to determine if there is immunity from the local zoning code for the other governmental entity. These factors include: (1) the nature and scope of the governmental entity seeking immunity from the local zoning code, (2) the type of zoning restriction involved, (3) the extent of the public interest served by the local zoning code, (4) the effect that the local zoning code would have on the other governmental entity, and (5) the impact on local interests.

Using this balancing test, the Second Department determined that the water district was immune from the Village zoning code. The court further noted that the Village failed to set forth any basis for the Village’s contention that the Village had the exclusive right to evaluate the factors and make this immunity determination.

One other note. The water district  also determined that the project was a Type II action under the State Environmental Quality Review Act (“SEQRA”) and, thus, not subject to review under SEQRA. This finding was upheld by the trial and appellate courts. The Second Department explained that since the project involved the “replacement, rehabilitation or reconstruction of a structure or facility, in kind,” it was a Type II action under 6 NYCRR § 617.5[c][2], even though it was going to hold 250,000 more gallons than the 1929 tank.

Because of the essential service at issue in this case, the provision of a safe and reliable source of potable water, it is understandable why the courts would favor the water district over a height restriction in a local zoning code.  If the project involved something less vital, the result may have been different.

Week to week we blog about recent developments in the land use arena, which typically arise in the civil context.  This week, we thought a recent “criminal” case decided by the Supreme Court, Appellate Term, Second Department, was not only particularly interesting, but also, the topic of illegal rental permits is one that many land use practitioners grapple with multiple times during their legal careers.

On October 26, 2017, the Appellate Term decided People v Makrides, 2017 NY Slip Op 51442 (U).  In Makrides, the Village Code Enforcement Officer alleged that on August 20, 2014, he visited property located on Beach Street.  The door was answered by an individual who identified himself as a renter and of no relation to the owner, Marie Makrides, with Beach Street Properties.   Based on a further review of rental permit records, and the lack thereof, the Code Enforcement Officer issued an Information alleging that Makrides was in violation of Village Code Section 205-4, failure to obtain a rental occupancy permit.

The Code Enforcement Officer visited the property again on November 5, 2014; except for the testimony of the alleged renter, the Code Enforcement Officer found the property to again be in violation of  the rental occupancy permit ordinance.

Makrides’ attorney moved to dismiss the accusatory instruments for facial insufficiency (CPL 100.15; 100.40).  Specifically, it was argued that the accusatory instruments “failed to contain facts of an evidentiary nature . . . and that they” were improperly based upon hearsay allegations. The Justice Court denied the motion.

After a non-jury trial, the Court found Makrides to be in violation of the rental permit ordinance and fined her $5,000.00 for each charge.  Makrides appealed.

The Appellate Term reversed both convictions, finding that facial insufficiency is a nonwaivable jurisdictional prerequisite to a criminal prosecution (CPL 100.40).  Finding that the statement made by the renter to be hearsay, and not supported by a deposition, it was an error for the Justice Court to rely on said testimony.  The testimony of the renter is clearly an out of court statement introduced in court for the truth of the matter at hand, to wit; classic hearsay testimony.

Consequently, the Appellate Term held that without said hearsay testimony, the Informations alleging that the defendant failed to obtain a rental occupancy permit –  without saying why it was necessary for her to obtain one – failed to contain “factual allegations . . .  through nonhearsay allegations . . . of the offense charged and defendant’s commission thereof.”

Abiding by principles of judicial restraint, the Court declined to make a further finding that the Port Jefferson Village Rental Permit Ordinance was unconstitutional.  It did, however, require the Village to remit, if paid, the combined $10,000.00 fine to the defendant.

In the Village of Bayville, New York (“Village”), a landowner wished to enclose and protect private property (“Lot 18”) , including the roadway thereon, against trespassers and traffic.  The landowner sought to erect crash gates on both sides of its property and across the roadway to prevent public access.  The road upon Lot 18 forms a part of Shore Road (connecting the public part of the roadway north of Lot 18 with Godfrey Avenue farther to the south).  Notably, Lot 18 abuts Mill Neck Creek and preventing traffic and access across the portion of Shore Road located upon Lot 18 may provide unfettered access to the water.

In the summer of 2013, the landowner made applications to the building inspector for a fence permit to construct two twelve-foot wide crash gates across Shore Road at the north and south sides of Lot 18.  The building inspector denied the applications and the landowner appealed to the Zoning Board of Appeals (“Board”).  The Board denied the landowner’s appeal and the landowner commenced a hybrid Article 78 proceeding/action in the Supreme Court against the building inspector and the Board.

In addition to seeking a reversal of the denials and demanding issuance of the building permit for the fences, the landowner sought damages for inverse condemnation.  The landowner argued that the Village had exercised a taking by allowing public access through the private property and upon the private roadway (especially because the building inspector and the Board denied the landowner’s rights to prevent such access).

The trial court issued an initial decision of June 2014, inter alia,  (i) denying the landowner’s petition to reverse the denials and (ii) granting the building inspector’s and the Board’s motions to dismiss, including for failure to state a cause of action for inverse condemnation.  Afterwards, however, the trial court granted the landowner’s application for leave to reargue.  Upon reargument, the trial court’s later decision of December 2014, as clarified by its order of March 2015, affirmed its initial decision – except it denied the motion to dismiss the landowner’s claim for inverse condemnation.  The building inspector and the Board appealed the March 2015 clarification order.

Last month, the Appellate Division, Second Department, affirmed the trial court’s March 2015 clarification order.  The appeals court noted that “[t]he cause of action [for inverse condemnation] should not have been dismissed since [sic], inter alia, it stated a cause of action to recover for damages . . . .”  Accordingly, the landowner can pursue its cause of action for inverse condemnation against the Village where public access upon and across private property is sanctioned by denial of the ability to enclose and protect it.

Fire Island is a 32-mile long, slender barrier sand bar island located between the Atlantic Ocean and the South Shore of Long Island.  The island, which varies in width from as little as about 550 feet to not more than about 1,760 feet, divides the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean.  In a letter report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs, Fire Island was described as containing “an impressive array of seashore resources,” including beaches that are “wide, clean, and gently sloping” and dunes that are “imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some lowlying pitch pine.”  See, 1964 U.S.Code Cong. & Adm. News, p. 3714.  The report referred to the sunken forest in the western half of the island as “a gem of its kind,” dominated by several hundred year-old American holly trees.

In apparent concern for the potential destruction of Fire Island’s unique environmental resources, Congress passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq. (“Act”) on September 11, 1964, which established the “Fire Island National Seashore” (“Seashore”).  The stated purpose of the Act was to conserve and preserve the Seashore’s “relatively unspoiled and undeveloped beaches, dunes, and other natural features.”

To achieve this objective, Congress provided the Secretary of the Interior (“Secretary”) with broad authority to condemn unimproved, privately-owned properties, and in limited situations, private properties that are being used in a manner that is inconsistent with any applicable standard contained in regulations promulgated under the Act.  The regulations, codified at 36 CFR Part 28, also set forth Federal standards to which local zoning ordinances must conform, articulating limitations on use, location, and size of structures on public and private property within the boundaries of the Seashore in order to reconcile the population density of the Seashore with the protection of its natural resources.

The Federal standards divide the Seashore into three distinct land use districts – the Community Development District, the Seashore District and the Dune District.  The Community Development District generally permits construction or expansion of existing residential units, religious institutions, schools and commercial units in existence before 1964.  The Seashore District permits alterations of existing improved properties, but prohibits new construction.  The Dune District prohibits all construction after 1978, except for dune crossing structures deemed necessary for public access to the beach.

Despite the Federal oversight, the Act does not preempt the four municipalities within the Seashore – the towns of Brookhaven and Islip, and the villages of Ocean Beach and Saltaire – from enacting and enforcing their own zoning regulations or granting variances and other zoning approvals.  Instead, the Act directs the Secretary to establish guidelines for local zoning authorities to use in developing local zoning regulations that conform to the Federal standards, as well as a process by which the Superintendent of the Fire Island National Seashore (“Superintendent”) shall receive copies of all applications for variances, exceptions, special permits, and permits for commercial and industrial uses, notices of all public hearings concerning said applications, and notices of the final action taken on such applications from the local zoning authorities.

The Secretary is charged with reviewing local zoning regulations to ensure that they are consistent with the Act and its implementing regulations.  The Secretary must disapprove any zoning ordinance or amendment thereof that he considers adverse to the protection and development of the Seashore, or which fails to include requirements that the Secretary receive notice of certain land use approvals and permits granted by the local zoning authority.  Properties that are developed in accordance with an approved ordinance, or which are the subject of variances and other land use approvals that result in such property being used in a manner that conforms to the Federal standards are protected from condemnation under the Act.  By 1985, the Secretary had approved compliance with Federal standards for the four zoning jurisdictions within the Seashore.

As a result, applicants seeking to construct new or expanded structures within the Seashore must now comply with both the federal zoning standards and the applicable zoning regulations of the local zoning authority.  In recognition of the concurrent Federal jurisdiction within the Seashore, the codes of the towns of Brookhaven and Islip have regulations that specifically pertain to properties within the Seashore.  See, Brookhaven Town Code, Ch. 85, Art. XVIII; Islip Town Code, Ch. 68, Art. XXXVIII.  Similarly, the Village of Ocean Beach has adopted regulations that largely mirror the Federal regulations that require that the Superintendent be provided with notice of applications for building permits and certain zoning applications, as well as notice of final actions taken on said applications.  See, Ocean Beach Village Code § 164-4.

To protect their property from the risk of future condemnation, applicants seeking to construct, reconstruct or alter structures within the Seashore, and their consultants, should take the time to carefully review the Federal standards, as well as the local zoning regulations.  They should also closely monitor the processing of their application to ensure that the local zoning authority has properly referred the building permit or zoning application to the Superintendent of the Seashore.

Owners of property within the Seashore who have questions about the process should visit https://www.nps.gov/fiis/learn/management/federal-review-building-zoning-permits.htm or contact the local National Park Service office at (631) 687-4750.

New York’s Freedom of Information Law (“FOIL”) mandates that agencies make all “records” available for public inspection and copying, subject to certain  exemptions. See, Public Officers Law.   The presumption under FOIL is that the public has a right to access “records” maintained by an any agency, because “the Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy” See, Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, [2005].

With an eye towards this public policy, the Second Department, in Fanizzi v. Planning Bd. of Patterson, 146 AD 3d 98 [2d Dept 2016], recently held that even an informal submission only temporarily possessed by an agency and later withdrawn by the applicant is subject to FOIL, if the records were sought during the time when they were kept by that agency.

In Fanizzi, the developer left draft architectural renderings in the possession of a town planner for a little over a week.  The planner discussed the renderings at the meeting of the Planning Board that took place a week later.  During that time, a civic leader who had been monitoring the proposed development, attempted to review this material, but was denied by the Town, because the developer had not formally submitted the renderings.  Not surprisingly, the civic leader commenced an Article 78 to compel the release of these draft plans.

In granting the Town and developer’s motions to dismiss, the lower court reasoned that architectural renderings informally submitted by the developer were not agency “records” within the public’s purview of FOIL.  Reversing the lower court, the  Appellate Division found these renderings were in fact kept and held by an agency and therefore, “records” subject to review pursuant to FOIL.  The court held that the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates.  The fact that the developer did not formally submit the renderings as part of an application for approval of an amended site plan was irrelevant.  As the court stated: “to hold otherwise would allow agencies to frustrate the purpose of FOIL by discarding records when they receive FOIL requests.”

Practice  Tip Commentary:  Once an applicant’s documents are submitted to an agency, even drafts, they are immediately subject to public scrutiny under FOIL.

Last month, the Appellate Division, Second Department, issued two interesting opinions concerning parking. One involved a parking variance and the other involved a restrictive covenant.

Here are the details!

No Parking

In Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 N.Y. Slip Op. 006643 [2d Dept September 27, 2017], a restaurant leased property at 340 Sunrise Highway. It was going to demolish an existing structure and replace it with a 5,400 square foot restaurant. The Village Zoning Code required 54 off-street parking spaces for the proposed restaurant. It had none.

The same landlord owned the adjoining property, 330 Sunrise Highway. The restaurant tenant proposed a merger of the two lots in order to take advantage of an exception in the Village Zoning Code that essentially allowed a municipal lot to substitute for the off-street parking for “interior restaurants that abut municipal parking fields.” The 330 Sunrise Highway parcel abutted a municipal parking lot, 340 Sunrise Highway did not.

A building permit was issued for the restaurant based on the merger representation. Just as the construction was nearing completion, the Building Department learned the merger of the two parcels never occurred. The Building Department refused to issue a certificate of occupancy until the restaurant obtained a parking variance. The restaurant entered into a license agreement that gave it access to 40 exclusive parking spaces next door from 4 PM to 12:30 AM weekdays. The parking variance was granted by the zoning board but the board imposed restrictions on the restaurant’s operating hours, tying them to the hours in the license agreement. It also required mandatory valet parking. The restaurant was unhappy with these restrictions and sued.

Although the restaurant prevailed at the trial level, it lost at the appellate court, which found that limiting the hours of operations to coincide with its access to the 40 parking spaces was proper. The restriction was aimed at protecting surrounding businesses and the expected increase in traffic congestion and parking problems.

Parking

In Fleetwood Chateau Owners Corp., v Fleetwood Garage Corp., 2017 NY Slip Op. 06431 [2d Dept September 13, 2017], the owner of an apartment building sued a commercial parking garage located on an adjoining parcel to enforce a restrictive covenant contained in a 1924 deed. That restrictive covenant prohibited the construction of nonresidential structures including garages unless the garages were for the exclusive use of occupants of any building built on the property.

In 1929, an apartment building was built on one part of the property. In 1931, a private parking garage was built on another part of the property. The entire site was sold at least twice after that. When the entire site was sold in 1988, the deed failed to mention the 1924 restrictive covenant.

The next purchaser subdivided the property. In 1990, the apartment building portion of the property was sold to Fleetwood Chateau Owners Corp. In 1991, the parking garage portion of the property was sold to Fleetwood Garage Corp. which intended to use it as a commercial parking garage.  Neither of these deeds referenced the 1924 restrictive covenant. Neither Fleetwood entity was a party to the 1924 deed nor mentioned in it as a beneficiary.

The Court noted that restrictive covenants, which place restraints on servient properties in favor of dominant parcels, are strictly construed against parties seeking to enforce them as they encumber the use of real property. The Court further noted that since it was not a party to the 1924 deed and was not mentioned in the deed as a beneficiary, Fleetwood Chateau Owners Corp. had to demonstrate the existence of a common plan or scheme of building development in order to enforce the restrictive covenant.

The Court found that there was no common development plan created for the owners of the subdivided lots.   The Court found no evidence that in 1924, when the land was sold as one parcel, that there was any obligation to subdivide the site. As a result, the Court found that “the covenant cannot be said to have benefitted any part of the land burdened by it.” The Court reasoned that the common grantor to the Fleetwood entities had owned the entire site and was free to do whatever it chose with the property except as against the 1924 grantee who had placed the restriction in the 1924 deed or those that “stood in his shoes.” As the Fleetwood entities solely derived their interest from the 1990/1991 grantee, and their deeds did not contain any restrictive covenant, “the original covenant is not enforceable as between” them. As a result, Fleetwood Chateau Owners Corp. had no standing to enforce the covenant and the parking garage was able to continue operating.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.

Measuring the height of a structure may seem straightforward in the abstract, but sometimes in practice that is not the case. Take, for instance, a recent Southampton Town Zoning Board application – Matter of the Application of Hermann – where the height of a house was the subject of a challenge in front of the Zoning Board.

During construction of a residential dwelling, several stop work orders were issued and lifted based upon evidence submitted to the Building Inspector from different surveyors attempting to determine the height of the single family dwelling. Mostly the argument surrounded an interpretation of the term “average natural grade”, which is the point of measurement on the ground in Southampton. This case was complicated by two factors. First, the property was disturbed from the construction of a prior dwelling demolished to make way for the new dwelling. During the demolition the grade was lowered to accommodate a larger basement. Second, there was a ten foot change in slope from one side of the house to the other.

SOUTHAMPTON TOWN ZONING CODE

Southampton Town Zoning Code provides specific guidance for measuring the height of a structure in §330-5 “Definitions” which defines “Height of a Structure”. Section B of that definition states:

“In all other cases, the vertical distance measured from the average natural elevation of the existing natural grade (before any fill has been or is proposed to be placed thereon) as established on a plan prepared by a licensed professional surveyor, at and along the side of the building or structure fronting on the nearest street to the highest point of the highest roof or, in the case of a structure, to the highest point. On all flag lots and lots utilizing a right-of-way, the flagpole access or right-of-way shall be considered the street front.” (Emphasis added)

So, the challenge to the property owner was twofold:

  1. Determine a reasonable methodology to establish “average natural grade” on a previously disturbed lot; and
  2. Apply that methodology to a property that contained a significant slope.

PRIOR ZONING BOARD DECISIONS

Fortunately, the Zoning Board had decided two previous cases involving height variances that centered on determining average natural grade. In the Matter of the Application of Schwartz, the Board initially observed that determining the average natural grade of a parcel of property was an inexact science. Next, the Board determined that using spot elevation data and the Topographic Map of the Five Eastern Towns was a reasonable methodology in determining average natural grade. Finally, the Board determined that a single measurement or data point along a building line was insufficient and that at least two data points must be used to determine average natural grade which would then be the basis on which to measure height.

Approximately a year and a half later, the Zoning Board decided a similar application, the Matter of the Application of Rubin. In Rubin, the Board followed Schwartz by making these findings:

  • Measuring contours and topography is an inexact science.
  • Site specific topographical data is the most accurate piece of information necessary to determine average natural grade.
  • Interpolation of data derived from survey maps and site-specific topographical data is a reasonable way to determine grade issues.

STANDARD

Applying the findings in Schwartz and Rubin, site-specific elevation data combined with the most recent contour mapping available will allow a licensed surveyor to determine contour lines and use these contour lines to determine height.

APPLICATION TO HERMANN

The property owner in Hermann engaged a surveyor who used the following data to determine average natural grade:

  • 1956 Topographical Map prepared by the U.S. Coast Guard
  • 1973 Photographs of Original Foundation under Construction
  • 1974 Five Eastern Towns Topographical Map
  • Actual field data
  • 2007 LiDAR Contour Map
  • 2012 LiDAR Contour Map
  • Field Observation of Surrounding Topography of adjacent lot
  • 2015 Under Construction Photographs of the Current Foundation
  • Actual Height Measurement

Using that information, the surveyor made a determination that the house exceeded the permitted height, and the property owner had to obtain a variance. The request for relief was significantly less than that alleged by the neighbor, and the variance request was ultimately granted. In the Hermann decision, the Board found that the methodology used by the property owner’s surveyor to be the most meaningful and likely accurate because it incorporated the above data.

CONCLUSION

To determine the height of a building – at least in Southampton – a surveyor must consider all of the data available, especially when the property is already disturbed. It is also suggested that a property owner or surveyor provide the Building Inspector with the methodology used to determine average natural grade in advance of construction, so violations of height restriction are avoided.

My partner, Anthony Guardino, recently posted a three-part series about land use fees on this blog. This post concerns a decision by the Appellate Division upholding a $776,307 “Park Fee” imposed by the Village of Westhampton Beach in connection with the development of a 6.59 acre tract of land.

Westhampton Beach Associates, LLC v Incorporated Village of Westhampton Beach, 151 AD3d 793 [2d Dept 2017] involves a 39-unit condominium development. The Village Planning Board approved the site plan in 2008 on the condition that the developer pay a recreation or park fee (“Park Fee”) to be set by the Village Board of Trustees pursuant to Village Law § 7-725-a(6) and § 197-63(Q)(2) of the Village Code. The Park Fee was imposed because the reserved area required by the Village Code could not be located within the site plan. The Village determined that 63,684 square feet of reserved area was otherwise required based on the site plan.

The Village Code contains a formula to calculate the Park Fee based on the fair market value of the land at the time of the application, the total area shown on the site plan in square feet, 2,178 square feet of reserved area per dwelling unit and the number of dwelling units.   Using the formula, in 2011, the Village calculated the Park Fee to be $776,307.

The developer sold the parcel to a third-party in 2012 before the developer paid the Park Fee. The deal included a provision that the purchase price was reduced by the amount of the Park Fee that the purchaser would pay to the Village. It also provided that if any portion of the Park Fee was waived by the Village or was disallowed for any reason, the buyer would pay that amount to the developer. Two years later, the developer sued the Village, contending that the Park Fee was unconstitutionally vague, as a way to recoup that money from the purchaser.

The Appellate Division first discussed two defenses raised by the Village – standing and statute of limitations. The Court ruled in favor of the developer on these impediments. The Court held that even though the developer sold the parcel before it paid the Park Fee, it still had standing to challenge the constitutionality of the Park Fee. The Court reasoned that the Park Fee was applied to the parcel at the time the developer owned the site and the subsequent sale and price reduction was an actual harm to the developer.   The Court then determined that the claim was not time-barred, as it was not subject to the four-mouth statute of limitations for Article 78 proceedings, since that type of proceeding could not be used to challenge the constitutionality of a Village code provision. Rather, it was governed by the six-year statute of limitations.

Unfortunately for the developer, the Court then ruled against the developer on the merits, finding that the Village Code provision was not constitutionally vague. Thus, the developer is unable to recoup the amount of the reduction in the purchase price attributable to the Park Fee, and the Village is able to continue imposing this significant fee on other applicants.

As outlined in our prior blog by Anthony S. Guardino, posted on March 20, 2017 entitled, “East Hampton Considers New Laws Mandating Nitrogen-Reducing Sanitary Systems and Offering Rebates to Replace Existing Systems”, similar to the Towns of East Hampton and Brookhaven,  the Town of Southampton adopted a local law on July 25, 2017 requiring advanced nitrogen-reducing sanitary systems starting September 1, 2017.

The Town will require an Innovative and Alternative On-Site Wastewater Treatment System (“I/A OWTS”) for (i) all new residential construction; (ii) any substantial septic upgrades required by the Suffolk County Department of Health Services; and (iii) any increase of 25% or more in the floor area of a building for those projects located in the “High Priority Area” as defined by the Community Preservation Water Quality Improvement Plan Project (“CP WQIPP”). In addition, an I/A OWTS shall be required for any new septic system or a substantial septic system upgrade required by the Conservation Board or Environment Division pursuant to Town Code Chapter 325, Wetlands.

The I/A OWTS is defined in the Town Code as “an onsite decentralized wastewater treatment system that, at a minimum, is designed to result in total nitrogen in treated effluent of 19 mg/l or less, as approved by the Suffolk County Department of Health Services.”

Southampton is also offering a rebate program through its Community Preservation Fund for systems within the Medium and High Priority Areas of the CP WQIPP with the following qualifying limits: (i) if you earn less than $300,000 /year, up to 100% of the cost to a maximum of $15,000 is available and (ii) if you earn between $300,001 – $500,000/year, up to 50% of the cost to a maximum of $15,000 is available.

Prior to implementing the updated septic requirements, the Town of Southampton studied the need for such systems and drafted the Community Preservation Water Quality Preservation Plan Project. The CP WQIPP thoroughly identifies and reviews the need for the required sanitary upgrades, finds consistency with the Town’s Comprehensive Plan and outlines how the Town characterized the high and medium priority properties that are now required to comply with the law.

Specifically, the CP WQIPP states:“The WQIPP presented herein is designed to complement the 2015 Town of Southampton CPF Project Plan, by markedly advancing efforts to foster aquatic habitat and watershed restoration, promote flushing in our bays and tidal systems, abate non-point source pollution and runoff, reduce sewage discharges and nitrogen inputs, and reverse or stem other activities threatening our coastal resources and drinking water aquifers.”

The Town of Southampton has preliminarily mapped priority areas for the purpose of this plan, based on the following criteria:

  •  Locations with no public water (well water);
  • Older communities, where many of the homes are likely to have cesspools instead of septic systems;
  • Homes that are built on small lots (less than half-acre);
  • Sites that have shallow depths to groundwater (e.g. less than 10 feet);
  • Sites that may be temporarily under threat of flooding or storm surge (FEMA Flood zones, SLOSH7 zones);
  • Soils that may be too porous or too impermeable for proper treatment of wastewater;
  • Areas where groundwater reaches surface water bodies relatively quickly;
  •  Nearby water bodies listed as TMDL impaired or the site of restoration efforts.

Parcels in each hamlet that meet one or more of these criteria are delineated on the maps as high or medium priority as follows:

High Priority: A combination of the parameters described above (SLOSH, FEMA, TMDL, Size, etc.) and 0-2 year groundwater to surface water travel times.

Medium Priority: 0-10 year groundwater to surface water travel times excluding the areas in the High Priority above.

The CP WQIPP also includes maps of the entire Town delineating the High Priority Areas (all waterfront/coastal properties in the Town) and Medium Priority Areas. Although these low nitrogen systems require ongoing monitoring and maintenance, the Southampton law does not require ongoing inspections by the Town.  The Town of Southampton has set up a helpful website where property owners can look up their specific property to determine if they are located in a High or Medium Priority area.  Notably, the Town of East Hampton adopted its local law requiring nitrogen-reducing sanitary systems on August 8, 2017, however, the portion of the law requiring the new, nitrogen-reducing sanitary system does not take effect until January 1, 2018.